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July 23, 2009

Terry Stewart: Oh, Now You Want a Gay-Marriage Factual Record ...

U.S. District Chief Judge Vaughn Walker wants a factual record in the federal Prop 8 case? Well, San Francisco Chief Deputy Attorney Therese Stewart’s got one, and she’s aching to give it to him.

In fact, Stewart’s been trying to get a judge to look at the facts about sexual orientation and discrimination for about four years.

“We really believe in presenting a factual record and having a court look at the conflicting evidence and make findings,” Stewart said today, shortly after the city moved to intervene in Perry v. Schwarzenegger, 09-2292 — the case in which attorneys Theodore Olson and David Boies want to prove that Prop 8 denies equal protection and due process.

In the motion and a separate declaration by Stewart, the city points out that it pulled together a factual record — with declarations by 12 expert witnesses — when it went to San Francisco Superior Court in 2005 to challenge a statutory ban against same-sex marriage. But no one — except their opponents — liked the idea.

Ah, how things change (after the jump) ...

Gay legal groups, such as the National Center for Lesbian Rights and Lambda Legal Defense and Education Fund, felt there was “no need” — as they told the court in writing — for a factual record. They’ve changed that tune, though, seeking to intervene in Perry saying they want to establish, guess what, a factual record.

“The city was the only plaintiff advocating for and attempting to develop a full factual record in the Marriage Cases,” Stewart wrote in today’s motion. “In contrast, other parties advocating for marriage equality argued that the issues in the case were legal and that the only material facts were those establishing plaintiffs’ standing.”

San Francisco Superior Court Judge Richard Kramer let the city submit its factual record, but wound up deciding the case without using it.

So when Walker made it clear earlier this month that he wanted a record — on such things as whether sexual orientation can be changed or whether gay marriages destabilize straight ones — it was a hallelujah moment for Stewart and her colleagues.

“I’m not afraid of what the other side will try to prove,” she said today. “We know what it is” and, she added, it will be easy to debunk.

Funny, though, how gay rights groups -- opposed to a full record in the past — are so eager to file one now that they’ve ticked off the Olson/Boies team by trying to intervene themselves.

Stewart holds no grudges, though. She writes off past disagreements over a factual record as nothing more than “strategic differences of view.”